Archive for the ‘UNCLOS’ tag

The recent near-collision of a PLA Navy tank landing ship and the missile-guided cruiser USS Cowpens in the South China Sea represents yet another incident in a long line of instances of Chinese gamesmanship with the US Navy extending back to the March 2009 harassment of the USNS Impeccableand the 2001 downing of an EP-3. In each of these cases, the Chinese took issue with the United State conducting surveillance of Chinese military targets at sea or on the Chinese mainland (in this case, the Cowpens was conducting surveillance of the PLAN aircraft carrier Liaoning, which was for the first time conducting exercises in the South China Sea).

All three occurred in the South China Sea, although it is not currently clear from media reports where exactly the most recent confrontation took place. This could prove to be an important distinction. Previously, Beijing justified its escalatory responses to US actions by saying that they interpreted U.N. Convention on the Law of the Sea (UNCLOS) to mean that military activities within the Chinese exclusive economic zone (EEZ) were prohibited without the consent of China. The EP-3 and Impeccable incidents both occurred near Hainan Island, inside the Chinese EEZ. If this most recent escalatory move occurred outside the EEZ, it will be particularly interesting to see how China justifies itself. Are they expanding their legal interpretation further by claiming that all military activities conducted in waters within the so-called “nine-dash line” must receive Chinese approval? This of course is conjecture—especially given that as of this writing it also appears from a cursory glance of Chinese-language news websites that neither the PLA nor the Chinese Ministry of Foreign Affairs has yet made a statement. At that point this issue will require the analysis of individuals better trained in the vagaries of Chinese territorial legal disputes than I.

Also pertinent to this debate is the recent admission at this year’s Shangri-La Dialogue (by a Chinese military officer no less!) that the PLAN was itself already conducting surveillance of U.S. military installations on Guam and Hawaii within U.S. EEZs around those islands. As Rory Medcalf points out,this clearly contradicts the Chinese legal position on the matter. At what point will this hypocrisy actually catch up with the PLA and necessitate a change in China’s legal position?

Last week at an event at the Wilson Center, Oriana Skylar Mastro suggested that China’s recent announcement of the East China Sea Air Defense Identification Zone (ADIZ) fits into a pattern of Chinese “coercive diplomacy,” in which China manipulates risk and intentionally raises the risk of an accident, a view echoed by other analysts in an approach known as salami tactics. In this way, China stops just short of further escalation, and achieves its objectives of slowly chipping away at opposing territorial positions and international legal norms. This analysis is clearly simpatico with her earlier published work regarding the Impeccable incident and the most recent confrontation involving the USS Cowpens. In her paper, Dr. Mastro identified a coordinated Chinese media campaign and legal challenge that accompanied the PLA’s military provocation. She also recommended that in order to prevent further Chinese attempts at escalation, the United States should publicize these events, directly challenge the Chinese legal position, and maintain a strong presence in the area, all things which the United States is now doing (specifically in the Cowpens case, the Department of Defense broke the story).

These are sound responses to Chinese attempts to delegitimize lawful operations in international waters. What should the United States not do? In an article published by the Washington Free Beacon, Bill Gertz quotes a senior fellow at the International Assessment and Strategy Center, Rick Fisher, who suggests that China in this incident is intentionally “looking for a fight” that will “cow the Americans,” and that the United States and Japan should heavily fortify the Senkaku/Diaoyu Islands in response. Disregarding the fact that China certainly is not “looking for a fight,” fortifying the Senkaku/Diaoyu Islands would be a terrible idea. The U.S. government does not even take an official position on the islands’ sovereignty! The U.S. response should certainly be firm in insisting that surveillance within foreign EEZs is completely legitimate and lawful; but turning this issue into about something other than surveillance in international waters would be blowing it out of all proportion. The United States should, in contrast to the ways in which China’s behavior is perceived, proceed carefully but resolutely and stick to its guns.

According to the Financial Times, the Global Times recently published an editorial calling for the Chinese government to revisit the sovereignty of Okinawa as part of the ongoing Senkaku/Diaoyu Islands dispute between Japan and China. China might have good strategic reasons for wanting an independent Okinawa given that the U.S. based nuclear missiles at Okinawa during the Cold War, which were aimed at Beijing and Shanghai (before the U.S. was aware of the Sino-Soviet Split). But the nationalists referred to in the FT article neglect the strategic dimension for the historical, justifying their position instead on the fact that Okinawa was a Chinese tributary state in the 15th Century.

Of course, this is just one instance in which China has used historical artifacts to justify its claims in the many territorial clashes it has with its neighbors. Perhaps the best known instance of this tactic is China’s nine-dash line claim of sovereignty over nearly the entirety of the South China Sea. China’s justification of the nine-dash line is an exercise in studied ambiguity. The territory within the line was first claimed only in 1947 by the then Nationalist government. The PRC continued the Nationalist argument in two ways: 1) Claiming the entire South China Sea and all islands therein using terms such as “sovereign” or “historic” waters that are unsupported by the UN Convention on the Law of the Sea (UNCLOS), and 2) Claiming the islands themselves as a basis to claim jurisdiction over territorial waters and exclusive economic zones (EEZ) around those islands, even though EEZs cannot be claimed around islands which support no human habitation or economic activity (which includes most of the islands in question, many of which are little more than bare rocks). China’s extralegal claims not only complicate access rights to fishing and resource extraction, but could also impede the freedom of navigation for the U.S. Navy and others.

China’s claims are dubious on a number of other grounds. To begin with, China’s borders have varied wildly over the course of millennia, and its territorial claims have changed in a much shorter timeframe. As Peter Dutton at the U.S. Naval War College notes, China, Vietnam, the Philippines, and Malaysia have historically all shared access to the South China Sea. Furthermore, even if Beijing’s argument concerning history and tributary states were to stand, China is hardly the only country to have lost former territories over the course of time—most European countries once ruled over areas far beyond their current borders. In this context, China’s claims are no different than modern-day Great Britain laying claim to France because of the House of Plantagenet, or Spain claiming nearly all of Latin America because of its colonial past. Indeed, according to Beijing’s logic, Mongolia can claim the Chinese homeland as its own.

Returning to the Global Times op-ed (which appears to have only been published in Chinese, not English), it is clear that the editorial is mainly about the Diaoyu Islands, not Okinawa. The op-ed proclaims: “In China’s struggle over the Diaoyu Islands problem, Japan does not have any hope of winning. China has sufficient resources and means, and enough official and public will to confront Japan over the Diaoyu Islands,” continuing with a four-point bulletin on how to do so (which includes increasing China’s naval presence in the area and enlisting the help of the Taiwanese). And then at the very end, the editorial mentions “revisit[ing] Okinawan sovereignty”—but it seems like the author (Hu Xijin, perhaps?) only really means for it to be a psychological ploy to “curb Japan’s attitude over the Diaoyu Islands.

But this is all your average, every-day kind of talk among nationalists in China. What was really surprising was the final conclusion: “Of course, China does not have to actively make life difficult for Japan and squeeze China and Japan into a confrontation at the point of a bull’s horn. China doesn’t need Japan to be friendly—it only has to play out the results of its chess game with Japan, and be bold enough to use its strength to bring Japan to its senses…After a few rounds, Japan will reconsider its proper behavior.”

Chinese nationalists can’t possibly believe this. Calling for irrational and provocative military action is one thing—but expecting Japan and probably the rest of the Western Pacific to react as tributary states of yore? This is a serious misappraisal of the intentions of those countries involved with China in territorial disputes. This sort of thinking, if anyone in power actually believes it, will not only detonate what little cooperation on territorial disputes that still exists, but might actually lead to military conflict. This sort of hubris isn’t unique to China—it seems pretty similar to the Bush administration’s prediction that the Iraqis would ‘greet us as liberators’ in 2003. But it didn’t belong in any government’s rhetoric then and it doesn’t now.